When the 2018 Supreme Court Term opened on October 1, the Court was on the front page of every newspaper. Then-Judge Brett Kavanaugh had just finished a day of questioning by the Senate Judiciary Committee regarding allegations of sexual assault, and the Court had become a political lightning rod. But the courtroom on October 9—Justice Kavanaugh's first day of oral argument after his confirmation—was free of any drama or controversy as Justice Kavanaugh deftly settled in as the junior Justice. And the Court very quickly withdrew from the front page and settled back into what it does best—granting, hearing, and deciding important legal questions.

The Term concluded with a series of closely divided cases; there were twenty 5-4 decisions in the 2018 Term—up from nineteen in the 2017 Term. But the Court exhibited an uncharacteristic diversity in the makeup of the majority in these cases. There were ten different five-justice majorities this term—the most ever during the Roberts Court, and almost double the average. All five conservative justices provided swing votes to liberal majorities at least once.

Chief Justice Roberts was in the majority in the most controversial cases—casting the fifth vote with the more conservative justices in the political gerrymandering cases and joining the more liberal justices in the case involving the citizenship question on the 2020 census. In each case, the Chief wrote the opinion narrowly and in a way that punted these important questions away from the Court back to the political branches and the states. In these and many other cases, the Court this past Term decided important questions of civil, criminal, and constitutional law narrowly and in a way that exhibited deference to the political branches and the Court's precedents.

Arbitration and Class Actions

The Roberts Court has consistently granted certiorari in cases involving questions related to arbitration and class actions, and the 2018 Term was no exception.

In Henry Schein, Inc. v. Archer & White Sales, Inc., the Court considered whether arbitration could be rejected consistent with the Federal Arbitration Act (FAA) when the basis for compelling arbitration is "wholly groundless." The Court rejected such an exception as barred by both the FAA and the Court's precedents. Justice Kavanaugh in his first opinion on the Court explained that "a court may not override the contract . . . [E]ven if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless."

In New Prime Inc. v. Oliveira, 1 the Court interpreted an exclusion in section 1 of the FAA— that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Drawing on early twentieth century dictionaries, cases, and statutes, Justice Gorsuch's unanimous opinion explained that when the FAA was enacted, the phrase "contracts of employment" would have meant any agreement to "perform work"— whether by employees or independent contractors. (Justice Ginsburg wrote a concurrence that bristled at Justice Gorsuch's textualism.)

The Court's decision in Lamps Plus, Inc. v. Varela was sharply divided, with the Chief Justice writing for the five more conservative justices. Lamps Plus successfully compelled arbitration of the named plaintiff's claims, but once in arbitration the plaintiff moved to arbitrate on a classwide basis, even though the arbitration agreement did not expressly permit classwide arbitration. The Ninth Circuit permitted the classwide arbitration, but the Supreme Court reversed because the FAA "requires more than ambiguity to ensure that the parties actually agreed to arbitration on a classwide basis." "[A] rbitration is strictly a matter of consent," and without some "affirmative contractual basis" to show that "a party agreed" to class arbitration, the Court was unwilling to compel it.

The Court had granted certiorari in Frank v. Gaos to decide the lawfulness of an $8.5 million cy pres settlement. These types of settlements have come under intense scrutiny, given that they often provide no relief to absent class members, and are viewed by many as simply lining the pockets of plaintiffs' attorneys. But rather than decide that issue, the Court vacated and remanded the case for a determination on whether the plaintiffs had standing under the Court's 2016 Spokeo v. Robins decision.

Intellectual Property Law

The Court's docket included a healthy set of intellectual property cases as well. In Helsinn Healthcare S.A. v. Teva Pharmaceuticals, the Court addressed the scope of the Patent Act's "on sale bar" to patenting, which prevents the issuance of a patent if the invention has been "on sale" for over one year prior to the filing. Justice Thomas's unanimous opinion for the Court explained that a product could be "on sale" even if it is not available to the public— for example, when the purchaser is required by contract to keep the invention confidential. The Court also decided two copyright cases—both unanimously. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, the Court held that a copyright infringement claim may not be brought until the Copyright Office actually registers the claimant's copyright, precluding infringement suits during the period in which the Copyright Office is considering whether to register the copyright. And in Rimini Street, Inc. v. Oracle USA, Inc., 2 the Court reversed the Ninth Circuit's decision to award Oracle $12.8 million for a variety of litigation expenses. The Copyright Act permits an award of "full costs," and the Court held that the "costs" permitted are only those identified in the general costs statute. (The Court also granted certiorari to consider during the 2019 Term a related question in Iancu v. NantKwest—whether the phrase "all expenses of the proceedings" allows the Patent and Trademark Office to recover attorney's fees.)

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Originally Publish by Orange County Lawyer

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